Raising the Bar: Understanding Evolving Legal Requirements for Progressive Discipline for Non-Certificated Staff

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By Sandra Jacques, Esq., LLM, Assistant Director of Legal Education, Foundation for Educational Administration

Do the Administrators and Supervisors in your School District follow the proper legal requirements for admonishing and/or disciplining staff?  P.L. 2021 .c66, mandates that: “Employees who are not teaching staff members (non-certificated staff) shall have the right to submit to binding arbitration (through the contractual grievance procedure) any dispute regarding whether there is just cause for a disciplinary action, including, but not limited to:

    reprimands, withholding of increments, termination or non-renewal of an employment contract, expiration or lapse of an employment contract or term, or lack of continuation of employment.

 This law represents a significant expansion of protections available for non-certificated staff members and should be carefully reviewed.

In matters involving arbitration of a disciplinary action for a non-certificated staff member, the burden of proof is now on the School District to show that its actions were reasonable and justified.  School Districts must be able to demonstrate that the employee has been given notice of the problem and that there have been legitimate attempts by the School District to solve the problem prior to the step of seeking termination.  Egregious behavior, such as Sexual Misconduct or endangering a student / staff member, do not necessarily need to show a history of “Progressive Discipline”.  It will be difficult for the School District to prevail if it cannot produce documented evidence of  Progressive Discipline for the employee.

 Key elements of just cause include the following:

  1. FAIR NOTICE Did management make the worker aware of the rule or policy which they are being accused of violating? 
  2. PRIOR ENFORCEMENT Has management recently enforced the rule or policy or penalized other workers for violating the same rule or policy? 
  3. DUE PROCESS Did management conduct an interview or hearing before issuing the discipline, take action promptly and list charges precisely? 
  4. SUBSTANTIAL PROOF Was management’s decision to accord discipline based on credible and substantial evidence? 
  5. EQUAL TREATMENT Is the punishment management is proposing consistent with the punishment other workers received for the same or substantially similar offense? 
  6. PROGRESSIVE DISCIPLINE During the disciplinary process, did management issue at least one level of discipline that allowed the employee an opportunity to improve? 
  7. MITIGATING AND EXTENUATING CIRCUMSTANCES Was the discipline proportional to the gravity of the offense, taking into account any mitigating, extenuating or aggravating circumstances?

Even in cases where a non-certificated employee is subject to a reduction in force, the employee has the right to bring the matter to arbitration and allege that the reduction in force is actually a pretext for disciplinary action – in this case termination.  The district will need to be able to clearly demonstrate that it is acting in good faith to implement the reduction in force for legitimate reasons, such as cost reduction or reorganization.

In the 2022 TEACHNJ case of Johns & Lopez v. Belleville SD, the School District filed Conduct Unbecoming charges against two custodians, primarily for reasons of excessive absenteeism, not working their full shift, and changing their hours without permission.  The custodians’ defenses included that there had been no Progressive Discipline (one custodian had never been disciplined, and the other had not been disciplined within the seven years prior to the dates that were the subject of the charges).  The Arbitrator negated the School District’s termination of the custodians, because the District failed to show Progressive Discipline and there was understandable confusion by the employees as to which superior could give permission for the custodians to leave work early.  The district had attempted to argue that a Head Custodian had no supervisory authority and could not authorize a change in schedule.  However the arbitrator determined that the district had sent mixed signals and the custodians in this case may have reasonably believed that the Head Custodian did have supervisory authority, since he did, as one example, meet daily with the custodians and give them their assignments each day.

In contrast to the aforementioned case, in the 2014 TEACHNJ case of Wheeler vs. SD of the City of Elizabeth, the District filed charges against a tenured secretary for chronic absenteeism, tardiness, and other behavioral issues.  The Arbitrator granted the Tenure Charges in favor of the District, because “despite (the secretary) being given verbal and written warnings, poor evaluations, improvement plans and numerous increment withholdings, the secretary’s behavior did not improve.”  The District was able to satisfactorily produce documentation which proved that it had utilized Progressive Discipline in this matter. 

The Progressive Discipline actions of the School District must be remedial, increasingly more severe, and proportionate and appropriate to the nature of the problem.  The following measures, if in writing/documented and done contemporaneously to the infraction, would likely demonstrate Progressive Discipline and that fair due process was provided to the staff member:

  1.     Verbal warning/discussion with a follow up email confirming the conversation
  2.     Letter of reprimand
  3.     Withholding an increment and/or docking pay
  4.     Recommendation for suspension/dismissal
  5.     Filing of Tenure Charges

 Additional considerations regarding Progressive Discipline to determine the degree/severity of discipline required are: intention; number of occurrences; previous corrective measures; time frame; and severity of the infraction.  Furthermore, it is likely that a non-certificated staff member is a member of a District Collective Bargaining Unit.  The District must be aware of the employee’s Weingarten Rights, which is their right to union representation during the discipline investigation and implementation. 

Even if the employee is non-tenured, the District should still implement Progressive Discipline.  A former staff member could sue a District for Wrongful Termination, Retaliation, Sexual Harassment or other forms of Discrimination after their employment has been terminated.  In the event that an employee resigns or quits, they could still potentially sue the District for Constructive Discharge, which in essence, means that they are claiming that the District made their job experience miserable, and the employee was forced out and had no choice but to leave the District. 

It is imperative that all forms of Progressive Discipline be documented.  From a legal perspective, “if it is not in writing, it did not happen.”  When Progressive Discipline is implemented properly, the School District can refute the employee’s allegations, and potentially reduce the cost of litigation, as the cases would be easier to “win” for the District, and may actually lead to a negotiated separation settlement instead of a legal matter.

Finally, school districts should seriously consider any health, safety or other concerns related to possible violation of state or federal law that may be raised by a staff member, and not engage in any form of retaliation when such concerns are raised.  Adverse actions, such as disciplinary memos, increment withholdings or termination, that occur shortly after an employee has raised questions or concerns about health and safety may be seen as a potential violation of the Conscientious Employee Protection Act.  One example of that involved the case of Hernandez v. Montville School District., 179 N.J. 81 (2004).  In that case a custodian was purportedly terminated for, among other things, lengthy personal phone calls, not arriving on time, theft of services, and not following the chain of command.  The custodian had been receiving positive performance reviews until shortly after he began raising concerns about clogged and overflowing toilets and other health and safety issues.  The custodian in that case alleged that he had been terminated for blowing the whistle regarding those concerns, in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to 34:19-8.  As we see in this case and other CEPA actions, the timing of an alleged drop in staff performance shortly after an employee “blows the whistle” can be used as evidence of potential retaliation.  In Hernandez, the district was ultimately found to be liable under CEPA.  The jury in that case found that the district had terminated the custodian in retaliation for raising health and safety concerns, and returned a verdict for $44,000 in lost wages and $150,000 for emotional distress.  The decision was ultimately affirmed by the New Jersey Supreme Court.

Districts can protect against such claims of retaliation by having clear staff evaluation procedures and performance expectations that are uniformly applied, along with professional development designed to support performance, consistent application of evaluation protocols and expectations for all employees, and procedures for responding in good faith and in a timely manner to any legitimate concerns raised by staff members regarding health and safety concerns or other possible violations of state or federal law.